The “independent state legislature” theory gets its day in the U.S. Supreme Court tomorrow (Wed.) as justices will ultimately decide whether the U.S. Constitution gives state legislatures sole authority to regulate federal elections beyond the purview of state courts and, potentially, all state and local election officials.

Various legal efforts to overturn the results of the 2020 presidential election included some form of the independent state legislature theory. Broadly, these efforts argued that individual votes or entire elections should be thrown out because they were cast or counted in ways authorized by court order, state regulation or local ordinance, but not by the legislature. This argument has found its way into legal efforts aimed at issues with elections since.

If SCOTUS finds that state courts have little to no jurisdiction over legislatures’ authority to regulate federal elections, then we could begin to see federal and state elections operating under different sets of rules – one set of which could willfully violate state constitutional provisions while being immune to state judicial review (Federal judicial review would still apply.).

The proceeding, Moore v. Harper, arises from two North Carolina redistricting cases. The state supreme court rejected two legislative efforts to draw new districts, finding that they were “egregious and intentional” partisan gerrymanders that violated the state constitution’s guarantee of free elections. The court adopted a map drawn by experts it appointed. Earlier this year, a divided Supreme Court rejected a request to put the court-drawn map aside and reinstate the legislatively drawn map. Justices Alito, Gorsuch and Thomas dissented, arguing “there must be some limit on the authority of state courts” if the Constitution’s language “is to be taken seriously.”

The independent state legislature theory hinges on similar language contained in two provisions:

• The Elections Clause (Art. 1, Sec. 4) provides that “the times, places and manner of holding elections for Senators and Representatives shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.”
• The Electors Clause (Art. 2, Sec. 1) provides that “each state shall appoint, in such manner as the legislature thereof may direct, a number of electors …” to elect the president.

Both apply to federal elections – not state elections.

In a brief filed at the Supreme Court, petitioners argue the North Carolina high court “decreed that the 2022 election and all upcoming congressional elections in the state were not to be held in the ‘manner … prescribed … by the legislature’ … but rather in the manner prescribed by the state’s judicial branch” (Emphases removed). Petitioners argue “this result is irreconcilable with [the U.S. Constitution’s] allocation of authority over federal elections.” Further, “the Election Clause’s allocation of authority to state legislatures would be emptied of meaning if state courts could seize on vaguely-worded state-constitutional clauses to replace the legislature’s chosen election regulations with their own.” Only federal constitutional limits should apply to federal elections.

Respondents argue that judicial review of election or redistricting legislation is “the same constitutional check placed on all legislation.” The Elections Clause resembles other grants of power in the Constitution “which contemplate legislation subject to ordinary constitutional checks … including judicial review.” Further, Congress, using the power granted in the Elections Clause, “has mandated that states’ congressional districting plans comply with substantive state constitutional provisions, and it has authorized state courts to adopt remedial plans.”

Respondents also argue the Reduction Clause (Amendment XIV, Sec. 2) “requires congressional districting plans to comply with state constitutional provisions protecting voter rights.” In relevant part, the Reduction Clause provides “when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied … or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced” proportionally. In other words, states lose representation in Congress if the right to vote is “denied … or in any way abridged” for those eligible to vote.

Further, respondents argue that state legislatures themselves are creations of their states’ constitutions, and the laws they pass must comply with those constitutions, regardless of how vaguely worded they may be. As such, state courts can intervene and enforce limits based on those states’ constitutions.